Archive: September 2009

1
Seventh Circuit Initiates e-Discovery Pilot Program Beginning October 1, 2009
2
Upcoming Events – October
3
Failure to Timely “Re-Assess its Procedures and Re-Check its Production” upon Notice of Inadvertent Production Results in Waiver of Later Identified Documents
4
Ex-Fund Manager Seeks to Block Evidence on E-mail Account
5
State E-Discovery Rulemaking after the 2006 Federal Amendments: An Update
6
Court Orders Adverse Inference for Spoliation of Data on Handheld Devices
7
California Judicial Council Amends Rules of Court, Establishes Duty to Meet and Confer regarding Electronic Discovery
8
Texas Supreme Court Finds Abuse of Discretion in Grant of Access to Defendant’s Computers, Summarizes Proper Procedure under Tex. R. Civ. P. 196.4

Seventh Circuit Initiates e-Discovery Pilot Program Beginning October 1, 2009

Beginning October 1st, Phase One of the Seventh Circuit’s new Electronic Discovery Pilot Program (“Pilot Program”) will begin.  The Pilot Program will be implemented through Standing Orders in selected cases, and evaluated through questionnaires to participating judges and lawyers.

The Pilot Program was developed as a result of recent and ongoing discussions throughout the industry regarding the need for cooperation and reform, especially in light “the rising burden and cost of discovery in litigation in the United States brought on primarily by the use of electronically stored information…”

The goal of the Principles is to incentivize early and informal information exchange on commonly encountered issues relating to evidence preservation and discovery, paper and electronic, as required by Rule26(f)(2).  Too often these exchanges begin with unhelpful demands for the preservation of all data, which often are followed by exhaustive lists of types of storage devices.  Such generic demands lead to generic objections that similarly fail to identify specific issues concerning evidence preservation and discovery that could productively be discussed and resolved early in the case by agreement or order of the court.  As a result, the parties often fail to focus on identifying specific sources of evidence that are likely to be sought in discovery but that may be problematic or unduly burdensome or costly to preserve or produce.

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Upcoming Events – October

IQPC: Information Retention & E-Disclosure Management, Europe

September 30 – October 1, 2009
Marriott Hotel
Auguste Orts 3-7/Grand Place
1000 Brussels, Belgium

K&L Gates partner David Cohen will present “Turning Theory Into Practice: Practical Steps to Take NOW to Reduce E-Disclosure/E-Discovery Risks and Costs” on Wednesday, September 30th at 11:00 AM. This presentation will provide a “roadmap” of practical steps to take when dealing with e-disclosure challenges, including improving records management and other concrete measures to reduce liability, exposure, and cost.

Click here to learn more.

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Failure to Timely “Re-Assess its Procedures and Re-Check its Production” upon Notice of Inadvertent Production Results in Waiver of Later Identified Documents

U.S. v. Sensient Colors, Inc., 2009 WL 2905474 (D.N.J. Sept. 9, 2009)

Defendant moved to compel the production of 214 inadvertently produced documents.  Plaintiff objected, arguing that the parties’ discovery agreement precluded the waiver of privilege as to inadvertently produced documents.  Noting courts’ general disapproval of “blanket” disclosure provisions and finding that the parties’ agreement did not in fact preclude waiver in all situations, the court analyzed the question of waiver pursuant to FRE 502.  The court identified three categories of inadvertently produced documents based upon the timing of the notice of their inadvertent production to the plaintiff.  The court found privilege was not waived as to the first category of documents (those brought to plaintiff’s attention the earliest).  However, noting that plaintiff was on notice of the deficiencies of his process as a result of the first notification of inadvertent production, and that despite such notice plaintiff failed to “re-assess” its document production, the court found the privilege had been waived as to the remaining categories.

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Ex-Fund Manager Seeks to Block Evidence on E-mail Account

The Wall Street Journal , Sep. 21, 2009
By Chad Bray

NEW YORK — Lawyers for former Bear Stearns fund manager Matthew Tannin have asked a judge to prohibit prosecutors from introducing evidence at his criminal trial regarding the erasure of his personal email account in 2008, calling it an "eleventh-hour smear."

In a letter Monday, Susan Brune, a lawyer for Mr. Tannin, said the government’s evidence has failed to establish "that Mr. Tannin destroyed any documents" and Mr. Tannin and his counsel have preserved all documents.

At a hearing last week, prosecutors from the U.S. Attorney’s office in Brooklyn said that they had received a letter from Google Inc. indicating Mr. Tannin’s Gmail account was erased in March 2008.

Read the entire article here.

State E-Discovery Rulemaking after the 2006 Federal Amendments: An Update

Since the amendment of the Federal Rules in 2006, many states have adopted their own rules to address the discovery of electronically stored information.  Recently, Thomas Allman, a recognized authority on electronic discovery, gave permission to post his article identifying and analyzing the myriad of state e-discovery rules around the country.  Our thanks to Mr. Allman for his analysis, and his gracious permission to post the article here. 

Introduction

Many states have adopted state-wide provisions to address some of the unique procedural issues involved in e-discovery. In addition, a number of “commercial” or “business” courts within states, as well as local courts, have adopted specialized rules on the topic.

As of September 2009, twenty-three states have adopted statewide e-discovery procedural rules which mirror or reflect the 2006 E-Discovery Amendments to the Federal Rules of Civil Procedure (“2006 Amendments”). In addition, several states have adopted, typically as a separate measure, an analog to the Federal Evidence Rule 502 dealing with waiver of the attorney-client privilege or work product protection.

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Court Orders Adverse Inference for Spoliation of Data on Handheld Devices

Southeastern Mechanical Services, Inc. v. Brody, 2009 WL 2883057 (M.D. Fla. Aug. 31, 2009)

Plaintiff Southeastern Mechanical Services, Inc. (“SMS”) moved for spoliation sanctions alleging that defendants, including individual defendants Smith, Sherouse and Brody, spoliated data by deleting it from their BlackBerries and laptops.  Defendants denied the allegations and argued that no evidence was destroyed because all of the data on the individual defendants’ laptops and BlackBerries was stored on servers.  Further, defendants argued that hard copies of the relevant emails were produced to SMS and it was therefore irrelevant whether any information was deleted.  The allegations regarding the laptops were eventually resolved by corporate defendant Thermal Engineering Construction Services, Inc.’s, (“TEI”), explanation that the laptops were configured so that the individual defendants’ emails would reside on the server.  As to the BlackBerries, however, the court found the individual defendants had deleted the data in bad faith and ordered an adverse inference to be provided to the jury at trial.

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California Judicial Council Amends Rules of Court, Establishes Duty to Meet and Confer regarding Electronic Discovery

On August 14, 2009 the Judicial Council adopted amendments to California’s Rules of Court, including amendments to Rule 3.724, which now requires consideration of issues concerning the discovery of electronically stored information when the parties “meet and confer” prior to the initial case management conference.  The amendments became effective immediately.

For a full copy of the amendments, click here.

Texas Supreme Court Finds Abuse of Discretion in Grant of Access to Defendant’s Computers, Summarizes Proper Procedure under Tex. R. Civ. P. 196.4

In re Weekley Homes, L.P., 295 S.W.3d 309 (Tex. 2009)

In this mandamus proceeding, the Supreme Court of Texas found that the trial court abused its discretion by ordering four of defendant’s employees to turn over their computer hard drives for forensic examination.

In 2007, after adding Weekley Homes, L.P. (“Weekley”) to an already pending breach of contract suit, plaintiff HFG Enclave Land Interests, Ltd. (“HFG”) served requests for production, including requests for “a broad variety of emails.”  Weekley produced thirty-one responsive emails.  Unconvinced that more correspondence did not exist, HFG filed a motion to compel additional searching.  At hearing on the issue, Weekley explained that the employees’ inboxes were limited in size and, when full, had to be emptied by manual deletion of the messages therein.  Accordingly, Weekley’s employees were “force[d]” to clear out their inboxes regularly.  Emails would be saved only if backed up by an employee to his or her hard drive.  The deleted emails were saved on backup tapes for thirty days.  The trial court denied HFG’s motion.

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